When considering modern day nullification and interposition of federal laws (NSA spying, drones, gun control, healthcare, etc.), it benefits us to look at the opinions of two important founders. Although both were advocates of state nullification, each established a slightly different standard for the appropriate time to take this action, as reflected in the Kentucky and Virginia Resolutions of 1798.
Jefferson was a purist – if the Constitution did not give Congress power to make a federal law, that law should be nullified – end of story. Under Jefferson’s standard, a significant portion of today’s federal laws should be nullified. Madison, on the other hand, could be construed as more pragmatic by establishing a higher threshold to trigger nullification by a state. Let’s take a look at their words.
According to Jefferson,
… whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: … (emphasis added)
Referring to its 18th century meaning, whensoever means at any and all times. Jefferson did not mince any words. Read the Constitution, and every single time the federal government passes a law that is not within those powers granted to it, a state should nullify that law. In the case of the Alien and Sedition Acts, Congress had criminalized acts that were not listed within their authority but instead reserved to the states, or to the people.
What about Madison? Similar to Jefferson, he also referred to Congress’ exercise of undelegated powers as a problem, however, in the Virginia Resolution, he further delineated the nature of these powers,
… and in the case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. (emphasis added)
So, Madison suggested that federal government’s exercise of undelegated powers had to be “deliberate, palpable, and dangerous” in order for a state to nullify. In the 18th century, these terms had the same meanings as they do today. Madison goes on to describe what was considered to be deliberate, palpable, and dangerous concerning the Alien and Sedition Acts. These laws were both outside the scope of federal government’s powers and expressly forbidden by the First Amendment. Moreover, according to Madison, Congress intentionally misconstrued certain general phrases within the Constitution to expand their power – likely his deliberate component. He also accused Congress of “uniting legislative and judicial powers to those of executive” thereby subverting the principle of free government – likely his dangerous component.
Some consider Jefferson’s approach to be harsher – rooted in pure principle while Madison’s approach may be viewed as more practical by requiring a higher threshold for nullification. In any event, each of these founders offer a blueprint that states can follow in deciding when to nullify an unconstitutional federal law.